Murphy's Law Blog

Welcome!

2011-08-19T10:49:00.000-07:00

First, we would like to welcome all our incoming 1L students. We are always very excited to see new members of the UDM family. We would also like to welcome back all returning students. We hope that you are all feeling refreshed after the summer break!

We have just set out our library tour schedules, which is posted at the library entrance. All are welcome to attend the library tours--sign-up is not necessary in order to attend. The tours provide a nice opportunity to familiarize yourself with the law library, or can provide a refresher of the library facility. Additional information about the library can be found in the Library Guide, which 1L students should have received as part of the first-year orientation package. Please see a member of the reference staff if you did not receive a copy or if you would like an updated copy. Of course, you should never hesitate to talk to any member of the library staff--we are eager to help!

Greater Polarization Linked to Increased Use of Soapbox

2010-03-08T12:34:00.000-08:00

The New York Times has an article today from Adam Liptak discussing a recent study that suggests that oral dissents from the bench have become more common since the inception of the Roberts court. As compared to the preceding Rehnquist and Burger courts, the study finds that the practice of reading a dissent from the bench has increased from an average of 3 per term to 3.75 per term. The study links the rise in oral dissents to increasing polarization on the court, claiming that such dissents could signal that bargaining and accommodation among members has broken down. Given the ideological pedigree of the members, as well as the types of cases heard by this court, is it any surprise that things aren't all peaches and cream?

Assassination of Americans by Americans for Americans

2010-02-04T13:18:00.000-08:00

Glenn Greenwald has a looooong post over at Salon.com today discussing recent disclosures that the U.S. intelligence community has been targeting American citizens for assassination. In the ongoing War on Terror (there's a new, less menacing term for our crusade, but I don't remember what it is) the Executive has commandeered the prerogative to designate certain American citizens as terrorists, making them fair game in the assassination campaign. Obviously there are serious questions about the legality of this program, as it essentially deprives American citizens of scads of Constitutionally-guaranteed protections. Equally troubling is the absence of oversight. According to government officials, before an American citizen can be deemed fair game for assassination, special permission must be granted. Swell, right? Not exactly. That special permission comes from within the Executive branch of government, either from the president or from someone working for the president. Keep in mind that the entire program was designed and has been executed by the Executive. So, to recap, before engaging in the assassination of American citizens (deemed terrorists, as defined by the Executive), the Executive must get special permission from the Executive. Sounds like a flawless system.

New Approach to Punishing Child Porn Possessors

2010-02-03T13:39:00.000-08:00

The New York Times has an article today detailing a novel approach to dealing with individuals convicted of possessing child pornography. Lawyer James Marsh represents "Amy," a woman who was abused by an uncle who documented and posted his crimes to the internet. The series of photos and videos are popular and are often found in the personal collection of individuals accused of possessing child pornography. Mr. Marsh devised a method for Amy to secure restitution for her suffering, demanding payment from any individual who is found to have the images in his possession. Under a theory of joint and several liability, Mr. Marsh claims that every guilty party should be ordered to pay the full amount of the restitution ($3.4 million) and then be permitted to sue co-defendants for their respective share of the total. The approach has provoked mixed responses from the legal community.

Citizens United, President Obama and Justice Alito

2010-01-28T12:43:00.000-08:00

The last 10 days or so have been pretty big from a legal/political standpoint. We had what could be a huge decision from the Supreme Court, and also the State of the Union address from President Obama. To make matters even more interesting, certain occurrences during last night's speech could very well inflame the issue even more. Full disclosure: I did not watch the speech last night. For one thing, I was working. More importantly, I'm dreadfully tired of talk with no action. Besides, surely I can get an unbiased, non-partisan account of what happened from the myriad news sources on the television and the interwebs...

In any case, during the speech President Obama expressed his disappointment in the Citizens United case and lamented what he saw as the likely outcome of the decision. That a sitting president has a bone to pick with a Supreme Court decision is not really news. Some outlets suggest that the forum for said criticism was unconventional. However, the reaction from Justice Alito, sitting front and center for all the cameras to see, clearly indicated that he didn't take kindly to the criticism. At first he appears to be struggling with a vile taste in his mouth, after which it looks like he mouths the words "not true." What exactly he was referring to as "not true" is open for debate.

That a Supreme Court justice would react to anything said during a president's speech is highly unconventional and raises some interesting questions about the court's alleged apolitical-ness (a real word? probably not). Glenn Greenwald at Salon.com has an interesting article today discussing the situation and what it means for a court that already credibility issues in the eyes of the public.

Also, since Murphy has yet to treat the Citizens United case directly, here are two articles discussing the legitimacy of the decision. One of them is another article from Greenwald, concluding the decision was at least partially correct. The other is from Lawrence Lessig and is a response to Greenwald's column.

Positive Signs for Criminal Justice Reform

2010-01-14T13:00:00.000-08:00

The New York Times website has an interesting article examining some new and novel approaches to law enforcement, criminal punishment and community outreach. With states facing increasingly tight budgets, the expanding prison population has become a serious issue in the search to trim expenses. Far too often the answer in these situations is to cut programs and services in the jails and prisons themselves, creating deplorable conditions for inmates and opening states and municipalities to charges of constitutional violations.

As an alternative to dubious cost-saving measures in corrections facilities, some criminal justice scholars have begun to assess current punishment and deterrent schemes in hopes of developing more effective methods of keeping people out of the facilities all together. The Times article looks at several projects formed by scholars and judges designed to increase consistency, certainty and fairness in the criminal justice system.

In one study, researchers brought together parties on both sides of the system; the police, lawbreakers and potential lawbreakers, and members of the community. At these meetings, individuals who might find themselves afoul of the law were informed that infractions would result in swift and certain punishment. By removing the often arbitrary and capricious nature common to the criminal justice system, officials were able to foster a perception of fairness in the minds of the potential lawbreakers. That perception of fairness and certainty appears to have led to reduced crime rates.

Although these studies and pilot programs have been limited to specific cities and neighborhoods, the results are promising. Furthermore, the approach advocated by these programs "should appeal to liberals (it doesn’t rely on draconian prison sentences) and to conservatives (it stresses individual choice and moral accountability)." Hopefully the appeal is powerful enough to bring about the changes to our criminal justice system that are so desperately needed.

Understanding a world of different laws

2010-01-14T06:51:00.000-08:00

The University of Ottowa has created an interesting resource for looking up basic information about the different legal systems across the globe. With a click, you can find out if a particular jurisdiction has adopted a common law, civil law, Muslim law, or other traditional law legal system. The site also provides basic information on issues such as language and GDP.

Roeder Murder Trial Delayed

2010-01-12T12:35:00.000-08:00

The emotionally and politically charged trial of Scott Roeder, accused of killing abortion provider Dr. George Tiller, became even more tense last week when Judge Warren Wilbert indicated that he might be receptive to evidence supporting a theory of voluntary manslaughter instead of first degree murder. The trial was delayed yesterday in order to hold a hearing on the question. Under Kansas law, voluntary manslaughter is defined as "an unreasonable but honest belief that circumstances existed that justified deadly force.” Defense attorneys are arguing that Mr. Roeder honestly believed that in killing Dr. Tiller he was preventing the deaths of unborn children.

The fact that the judge would even consider such a defense has set off howls of protest in the pro-choice camp and left pro-lifers pleasantly surprised at the unexpected victory. Pro-choicers argue that permitting such a defense will embolden others who wish to do violence to abortion providers and legitimize the use of violence. See the New York Times article here.

Strategic Default as Panacea?

2010-01-07T13:49:00.001-08:00

We're back. At least until we decide to take another excessive holiday sabbatical, and by 'excessive holiday sabbatical' I mean from the beginning of November until after the New Year.

Surely you're wondering what could possibly be so interesting as to drive Murphy out of his/her spiderhole and return to posting. The answer lies in a New York Times article discussing the increasingly popular practice of voluntarily walking away from an underwater mortgage, also known as strategic default. In the article, the author points out how individuals are treated differently than institutions when abandoning a crummy investment.

Whereas an institution defaulting on a bad investment is viewed purely as a reflection of profit-based decision-making, the homeowner is still subject to a stigma if he/she walks away from a virtually worthless house. In fact, the stigma is even reinforced by the federal government in the way government credit counselor advise against defaulting on underwater mortgages. Why the different treatment? Why in one situation is cutting ones losses viewed as purely a business decision, and in the other a referrendum on an individual's moral character? The author goes so far as to suggest that changing the way mortgage default is viewed might actually speed the recovery of the lame housing market.

Read the article and see what you think. Should strategic default on a home loan be subject to any greater moral opprobrium than similar practices in the business world?

Secrets Don't Make Friends

2009-11-10T13:34:00.000-08:00

With nearly every news media outlet gorging at the "healthcare debate" trough, it's easy to forget that Congress is in fact working on other legislative initiatives wholly unrelated to healthcare. One such piece of legislation is H.R. 984: State Secret Protection Act of 2009. With a name like, 'State Secret Protection Act of 2009,' it has to be good! The legislation, sponsored by Rep. Jerry Nadler of New York, was approved by the House Judiciary Committee last Friday.

The bill aims to curb the abuse of the state secrets privilege, which has been embraced by the Obama DOJ (following W. Bush's lead) as the best method of never having to answer questions about constitutionally suspect executive policies/actions. Salon.com's Glen Greenwald has a post that includes a radio interview with the bill's sponsor, Rep. Nadler. According to Rep. Nadler, both George W. Bush, and Barack Obama blazed new trails with respect to the abuse of the states secrets privilege. First, the frequency with which the privilege was invoked in suits against the government skyrocketed during the Bush administration. Then, the doctrine saw a transformation in the manner with which is was (and continues to be) applied. According to Rep. Nadler, the privilege was initially designed as an evidentiary privilege that would protect sensitive documents and other types of evidence.

That application has since been surpassed in the Bush and Obama administrations. Now, instead of simply protecting a single, or group, of documents/evidence, the executive has successfully argued that the privilege applies to subject matter. This transformation greatly expanded the scope of the privilege and permits the executive to punt a suit at the pleading stage, effectively barring citizens from seeking redress in the courts. It's hard not to see the problems with this approach to the privilege.

The State Secrets Act of 2009 would help to return the state secrets privilege to its traditional moorings as an evidentiary privilege. It provides safeguards in order that legitimately sensitive materials are protected, while also ensuring that citizens have access to the courts for redress. On its face, it would seem to satisfy both the needs of national security and the maintenance of the courts as a check on executive power. Unfortunately, as (recent)history poignantly demonstrates, once power is granted, it's a bitch to take it away.

Something Else for Glenn to Cry About

2009-11-09T13:11:00.000-08:00

Towards the end of September, Murphy wrote about Glenn Beck filing a complaint with WIPO over a contested domain name that he claimed violated his trademark in his own name. The website, didglennbeckrapeandmurderayounggirlin1990.com, was conceived as a satire of Beck's own proclivity for inventing outrageous and baseless accusations and confronting the target with said accusations, thereby forcing someone to explain or defend against purely fictional claims. For instance, "There are people out there who claim that Murphy is a communist. Now, let's be clear, I'm not saying that Murphy is a communist. However, if Murphy has nothing to hide, why doesn't she just come out with the information to prove that she is not a communist and put this whole thing to rest?" For a real world analogy, see the Birther "movement".

Thankfully, we can chalk up a victory for the forces of good, and revel in a defeat for the forces of nutbaggery. The WIPO arbitration panel decided (.pdf) in favor of the respondent noting:

"Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant's mark under the Policy."

Following announcement of the victory Isaac Eiland-Hall, respondent and domain-owner, issued a letter to Beck, ceding control of the domain and admonishing Beck for his hatred of Constitutional liberties.

Col. Mustard in the Office with the P2P

2009-11-05T13:11:00.000-08:00

Copyright issues have been a frequent topic of Murphy's posts. We return to this theme today. An article. from ars discusses the multiple and varied voices that have spoken out to debunk the myth, propogated by Big Content, that P2P is the singular cause of decreasing revenues and job loss in the music industry. That this myth is a load of malarkey has been effectively demonstrated by likes such as Lawrence Lessig and EFF. However, the ars article expands the typical circle of P2P-as-Bogeyman skeptics to include officials from the EU and even longtime members of the music industry.

These new critics essentially rehash what has already been committed to paper by Lessig: primarily that the growth of P2P was not a product of rejecting the content industry wholesale, but rather a response to the failure of Big Content to give the consumer what she wanted. Certainly, there are always going to be individuals who want something for nothing. Piracy in some form or another has been a part of human societies going back to the beginning. However, pirates form a small minority of the consuming public. Most consumers wish to support artists and understand that paying for content helps to accomplish that end. The rise of P2P did not signal any sort of move away from this desire. Rather, it signalled frustration with the reactionary policies initiated by Big Content to tighten restrictions on what consumers could do with purchased content.

Net-Neutrality: A Digital Panacea?

2009-10-29T13:42:00.000-07:00

It has been a good couple of months for net-neutrality supporters. FCC chairman Julius Genachowski is championing the idea and the Democrat-controlled Commission appears likely to commit ink to paper in order to institutionalize neutrality principles.

However, there are some that suggest that barring discrimination at the ISP level can only go so far to ensure that all content and legal activity on the internet remain on equal footing. An article at ars discusses how additional chokepoints exist and how these chokepoints could be manipulated by companies for pecuniary gain. One company well-suited to benefit from such activity? None other than one of the biggest cheerleaders for net-neutrality, search giant Google. Read the article here.

Less Fear = Less Alcohol Tragedies?

2009-10-21T13:28:00.000-07:00

An esteemed co-worker of the Murphy blog team brought this article to my attention this afternoon. A bill recently passed the Michigan House that would exempt underage drinkers from criminal liability in the event that they place an emergency call to 911. Lawmakers hope the exemption from prosecution will lead more underage drinkers to utilize 911 in emergencies and cut down on the number of alcohol-related fatalities.

Your Utility Bill Lies Like a Rug

2009-10-20T15:12:00.000-07:00

ars has an interesting article about a report issued by the National Academies of Science (NAS). At the request of Congress the NAS attempted to put a dollar figure on the cost of externalities of the U.S. energy economy, including electricity, transport and heating. As the article indicates, the cost of climate change was not included in the NAS estimate. Even without accounting for the costs of climate change, the number produced by the NAS is staggering at $120 billion. Oh, and the report suggests that the number is conservative. Comforting. Read the article here. Read the report online here.

You Don't Have to Go Home, But You Can't Stay Here

2009-10-20T12:20:00.000-07:00

Today the Supreme Court set the stage for the next legal showdown in the Guantanamo detainee saga. The Court granted cert in the case Kiyemba v. Obama. The detainees involved in the case are Muslim men from the Uighur region of China. The Bush administration determined that the men posed no terrorist threat and the Justice Department has stated that the men are free to leave Guantanamo for any country that will accept them. The case is complicated by the fact that the men fear being tortured if they are returned to their native China, where they are viewed as terrorists. Despite capturing them and hauling them off to an island prison, the United States has refused to accept the men. The issue in Kiyemba focuses on the power of the courts to make immigration decisions, an area previously reserved for the legislature and executive. The Obama administration is arguing that the courts do not possess the power to order that the men be accepted into the United States. The Kiyemba team is arguing that without the power to order that the men be accepted, the ruling in the Boumediene case, which authorized federal courts to hear habeas petitions from Guantanamo prisoners, would be hollow. The New York Times and the Washington Post both have articles on the issue.

Pirates With a Conscience

2009-10-08T14:09:00.000-07:00

If you haven't noticed already, this Murphy blogger has been on quite an ars technica kick lately. There are a couple of reasons for this. First, they do a really nice job of covering a range of issues in the tech world. From science to law and policy to business, ars covers issues in a manner that makes tech accessible to the less tech-savvy, like myself, for instance. Also, they have a pretty good sense of humor. Finally, as an added bonus, I can get my video game news fix while still appearing to be hard at work on this blog. Everybody wins!

Those of you following the library via the intarwebs and our print publication, the Murphy's Law newsletter, may recall a book review of Lawrence Lessig's Free Culture. One of the central theses of that book was that with the rise and apparent permanency of p2p file sharing technology, the content industry must abandon its antiquated business model if it wishes to survive as a lucrative business. That has not happened. The RIAA and the MPAA continue to pursue their scorched earth policy of attempting to sue illegal filesharing into oblivion.

However, just because the industry itself is not exploring other models does not mean that everyone is standing pat. In fact, ars posted an article today detailing the efforts of an Australian man to provide means for guilt ridden pirates to clear their conscience and compensate artists. According to the article, the website, piracypayback.org, isn't exactly setting the world on fire (or even self-sustaining) just yet. Regardless, it does provide an example of someone trying to create a novel system where consumers and artists get what they want out of content.

Net Neutrality Update

2009-10-07T13:44:00.000-07:00

Here's an interesting update to the post of September 21 dealing with the FCC's desire to enact rules regarding net neutrality. It appears that the GOP is lining up for a fight, arguing that neutralitiy requirements for ISPs/Telecoms will reduce competition, reduce investment in new technology, and be detrimental to consumers. Already, we have seen a rider thrown into a Department of the Interior appropriations bill that would have prohibited any funds going to promulgating rules requiring neutrality. Additionally, House Republicans sent a letter to President Obama expressing their disappointment that the FCC would be looking at neutrality rules given the current economic quagmire.

I think they have a valid point. Afterall, it was excessive regulation of the finance world that created this quagmire. Wait...that's not actually true. In any case, rest assured that this is not the last we'll hear of Republicans on this issue as the FCC continues in the rulemaking process.

Patriot Act Revisited

2009-10-05T06:14:00.000-07:00

The USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692) would have required the government to show that any records it seeks access to pursuant to a section 215 order have some connection to a suspected terrorist--in other words, no more fishing expeditions.

But before the mark-up, Patrick Leahy, a cosponsor of S. 1692, along with
Senators Ben Cardin, Ted Kaufman, and Dianne Feinstein drafted a substitute bill that waters down several of the provisions in the original bill.

Click here to learn more. Or take a look at the 2009 Patriot Act Resource Guide.

Can education be saved in Detroit?

2009-10-02T10:56:00.000-07:00

It's that time of the year again. Students around the nation have begun filing into their classrooms for the start of the 2009-10 academic year. In Michigan, the questions most critical to their future academic achievements might not appear in any exams, but instead be tasked to the administrators and politicians in whose charge they have been placed. As the state confronts a budget deficit of approximately $2.7 billion, education spending is increasingly viewed as a target for cutbacks by lawmakers in Lansing. The problem is particularly dire where it is especially vulnerable.

Despite the widely publicized, $500,000 "I'm In" pupil retention campaign occurring in Detroit, there has been a continuing exodus of schoolchildren away from its K-12 elementary school system (ABC 7 Action News). The district emergency financial manager Robert Bobb has prepared the 2009-10 budget anticipating 83,777 pupils, 16,223 fewer than necessary to secure "first class" status for Detroit public schools (Id.). The designation is significant for protecting the district against the encroachment of charter schools which have increasingly been viewed by parents as an attractive alternative to the city's beleaguered public school system. Bill Cosby's recent visit to Detroit as part of the "I'm In" campaign was directed principally at this problem. The actor and activist made door-to-door visits to area parents exhorting them to keep their children in the system and lauding the efforts of Mr. Bobb and the school board in reforming the elementary education system (Id.).
Highlighting the difficulty of this effort is the fact that public school aid is calculated according to the number of enrolled students (Detroit News). In the budget being contemplated by Lansing, aid to Michigan schools stands to be reduced by $483 million, or about $218 per pupil, for the remainder of the school year. Among the other measures being considered are a 25% reduction in early childhood grants, and the elimination of Governor Jennifer Granholm's small high schools initiative (Id.). The usual casualties of education cutbacks: afterschool programs, student to teacher ratios, centers and facilities closures, among others, are taken for granted along with the actual educational damage that they each entail. The $18.6 million dollar cut designated for Detroit public schools is the most significant of all district reductions in Michigan (Detroit Free Press). Notwithstanding the city's own $18.6 million budget deficit, and the stark possibility of bankruptcy still looming in the offing, we will see whether the city can be resilient in the face of further financial malaise. Are you in?

Mr. Beck goes to WIPO

2009-09-30T13:43:00.000-07:00

Can a mere domain name be defamation? Glenn Beck says yes.

Memes strike back...

Full disclosure: I'm linking to these articles for several reasons.

First, anything that shines negatively on Glenn Beck is inherently good. Everyone is entitled to their own opinion. There are people out there that believe that he is the truest form of patriot. They are entitled to that belief. Personally, I believe he is a meglomaniacal, pompous, ignorant gasbag who shouts, weeps and deceives purely out of a desire to drive ratings and expand his brand. He is a phony.

Second, there is a legal issue involved in these articles and it is an issue that will continue to grow as the internet continues to shrink our planet.

Third, the photo of Beck as Leonidas of the movie 300 is freaking hysterical.

Improper Influence: Now FDA-Approved!

2009-09-24T18:57:00.000-07:00

As if there wasn't already ample evidence that the FDA approval process for drugs and medical devices is broken (Vioxx, anyone?), this New York Times article provides a cherry on top. With all of the attention paid to the healthcare debate, perhaps we should widen the discussion a bit more to include a conversation about how to end the practice of politics influencing life and death decisions in the FDA approval process.

This is another prime example of the government failing to execute one of its most fundamental and basic functions, that of ensuring the health and safety of citizen-patients.

ACORN Madness!

2009-09-23T13:52:00.000-07:00

Unless you've been off the grid for the last two weeks (if you have I commend you and I'm envious), you've probably heard something about the ACORN (Association of Community Organizations for Reform Now) 'scandal.' GOP lawmakers and conservative talkingheads are lathered up good over an undercover video that was posted to the internet two weeks ago in which ACORN employees appear to be offering tax advice to a prostitute and her pimp. Predictable blustering and harumphing ensued, followed by mock outrage at the way taxpayer dollars were being spent.

Apparently, ACORN was set to recieve a smidge of the TARP funds (To put 'smidge' into context, Rep. Alan Grayson of Florida had this to say: "The amount of money that ACORN has received in the past 20 years altogether is roughly equal to what the taxpayer paid to Halliburton each day during the war in Iraq.") In order to strike a blow to the forces of evil (you know, those forces responsible for registering poor and underserved voters, gasp!) the House quickly drew up legislation to deprive ACORN of ever receiving federal funding. They even gave it a nifty name (just in case you didn't know the purpose of the legislation), the Defund ACORN Act.

For those who might be out of the loop when it comes to GOP bogeymen (including me, prior to pokin around the intarweb), the GOP and its cohorts have been after ACORN for a while now, alleging, among other things, voter fraud. Normally I would chalk all of this up to politics as usual, in the same camp with the unsavory practice of naming legislation after abducted, raped or murdered children. However, the poorly drafted legislation could have unintended, and hilarious, consequences.

If the legislation is enacted and applied as written, it would prohibit "covered organizations" from ever receiving government money, whether in the form of contracts, grants or any other type of disbursement. So far, so good. It's not until the legislation defines "covered organizations" that it runs into trouble:

(b) Covered Organization- In this section, the term ‘covered organization’ means any of the following:

2(1) Any organization that has been indicted for a violation under any Federal or State law governing the financing of a campaign for election for public office or any law governing the administration of an election for public office, including a law relating to voter registration.

(2) Any organization that had its State corporate charter terminated due to its failure to comply with Federal or State lobbying disclosure requirements.

(3) Any organization that has filed a fraudulent form with any Federal or State regulatory agency.

(4) Any organization that--

(A) employs any applicable individual, in a permanent or temporary capacity;

(B) has under contract or retains any applicable individual;

(C) has any applicable individual acting on the organization’s behalf or with the express or apparent authority of the organization.

Unfortunately for the reactionary lawmakers responsible for this farce, most of the U.S. defense industry falls under this definition of "covered organization." As Ryan Grim of the Huffington Post puts it, "the bill could plausibly defund the entire military-industrial complex. Whoops."

This point has not been lost on Rep. Alan Grayson. Mr. Grayson is asking the public to help compile a list of "covered organizations" in order to have it added to the legislative history of this bill. See here for a radio interview with Representative Grayson.

The other issue confronting proponents of this bill is the Constitutional prohibition against bills of attainder. For a look at the relevant precedent dealing with bills of attainder, see here.

Net Neutrality for Your Wireless Device?

2009-09-21T13:02:00.000-07:00

F.C.C. chairman Julius Genachowski gave an interesting speech at the Brookings Institution this morning. In his speech, Mr. Genachowski proposed to extend "Net neutrality" principles to wireless network carriers. "Net neutrality" refers to the principle of treating all network traffic the same, prohibiting providers from favoring certain forms of traffic over others. "Net neutrality" already applies to home broadband providers. Non-neutrality has been an issue for file-sharing applications on some provider's networks.

With today's proposal, Mr. Genachowski would extend neutrality principles to wireless network providers, such as AT&T. The industry response has been predictably lukewarm. The New York Times and Ars Technica have articles on the speech.

The Behind the Scenes Battle in the Health Care Debate

2009-09-15T12:58:00.000-07:00

In August Murphy featured a post discussing the backroom deal between the White House and Big Pharma that was supposed to bring Pharma onboard for the healthcare reforms. Sadly, despite Obama's reprise of Homer Simpson selling his soul for a doughnut, Big Pharma's support might not really matter. The GOP and the usual band of reactionary talking heads have waged a filthy (and successful) campaign to scare the heck out of the American people on the issue of health care.

Since that post in August we've had Sarah Palin creating the spectre of 'death panels,' which she claimed was part of the health care legislation. (Which of the numerous plans in committee she was referring to is still unclear. But hey, it makes great copy.) Not to be outdone by the Rhodes Scholar from Alaska, The Honorable Senator from Iowa Chuck Grassley summoned the bogeyman to granny's door. Finally, we've seen perfectly reasonable citizens attending townhall meetings packing heat and toting signs featuring President Obama done up in Nazi regalia.

Because these types of stories sell newspapers, magazines and drive ratings on cable news channels (with almost no additional sensationalizing needed!), they have been on a constant loop in the media. Obviously, this is a tremendous boon to the insurance industry because it serves their goal of defeating reform. More importantly, however, it allows them to pursue policies that are vastly more effective than grassroots (or astro-turfed) campaigns executed by the frothing-at-the-mouth minions of Rush and Glen. And, with the mainstream media fixated on the Sarah Palins of the world, the insurance industry PR machine can operate free of the watchful eye (that might be a stretch; maybe just 'eye') of journalists.

A piece on salon.com today features the remarks of Wendall Potter. Mr. Potter was a communications officer for the health insurer Cigna. In the piece Mr. Potter discusses the great lengths the insurance industry goes to in order to inform and frame the debate on health care reform. Also, he discusses the industry's efforts to provide lawmakers with selective statistics to help them bolster their case for opposition to reform. The article is informative largely because Mr. Potter spent 20 years working for the insurance industry and was present for the last reform battles in this country.

Will the Supreme Court upset precedent, and allow corporations to spend their profits bashing political adversaries before elections?

2009-09-09T10:34:00.000-07:00

As far back as 1905, in an annual address, Teddy Roosevelt blasted corporate campaign contributions, asserting:

All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders' money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts. Not only should both the National and the several State Legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation save by the employment of counsel in public manner for distinctly legal services.

Over 65 years later, Congress passed the Federal Election Campaign Act of 1971 ("FECA"), 2 U.S.C. 431, et seq., which prohibited unions, national banks, and corporations from making campaign contributions or expenditures. But in 1976, the U.S. Supreme Court held unconstitutional, in First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978), a Massachusetts' law restricting corporate political speech (aka spending corporate money to influence voters in a referendum). The Bellotti dissent noted the disconnect with federal campaign laws, but the majority felt referendums are distinguishable from electoral campaigns.

Soon thereafter, the plaintiffs in Buckley v. Valeo, 424 U.S. 1 (1976) challenged the constitutionality of FECA, with partial success. The Buckley court held, in essence, that money talks, and that campaign expenditures are protected by the first amendment, but not campaign contributions. Buckley made it clear, however, that expenditures by private persons cannot be limited simply by characterizing them as contributions. Despite Buckley, it remained unlawful for a corporation, national bank, or union to provide funds to a campaign. See 2 USCS 441b.

But corporations soon discovered loopholes that allowed them to support campaigns, so long as they avoided "electoral advocacy." To address this, Congress passed the Bipartisan Campaign Reform Act of 2002, ("BCRA"), Pub. L. No. 107-155, 116 Stat. 113. Under BCRA, corporations must fund "electioneering communications" with PAC money. See 2 U.S.C. 441b. "Electioneering communications" are defined, in part, as broadcasts made within 60 days of a presidential campaign.

This long history of legislatively imposed restraints on corporate campaigning has withstood Supreme Court scrutiny in the past, including in two relatively recent cases, McConnell v. FEC, 540 U.S. 93 (2003) and FEC v. Wisconsin Right to Life, 551 U.S. 449(2007).

But then there was the so-called movie pillorying Hillary (sorry, I couldn't resist) last election, and its corporate sponsor. And now change is in the air.

This week, the Supreme Court, including for the first time Justice Sotomayor, heard, for the second time, Citizens United v. Federal Election Commission (08-205) (the Hillary case), which challenges restrictions on corporate campaign funding, or, depending on your viewpoint, mudslinging. To win, the plaintiffs will need to win over Roberts and Alito--in the past, Roberts has expressed some reluctance about overturning precedent.

We'll see how it goes this time round.

Death Penalty Dissents

2009-08-14T09:12:00.000-07:00

The New York Times carried an interesting article yesterday about the rise of dissents in death penalty cases. Furthermore, the source of these dissents are not always the traditional bleeding heart liberal judges. Some of them come from staunch supporters of capital punishment. Check out the article here.

Strange Bedfellows = Legislative Victory?

2009-08-10T08:49:00.000-07:00

I couldn't decide whether this should be filed under "Realities of Politics," or "Sleazy Enough to Make You Queasy." An editorial today at Salon.com highlights the deeply troubling aspects of the White House deal with Big Pharma that might just pave the way for the red-headed stepchild of legislation, healthcare reform, to finally gain genuine traction.
As the columnist indicates, such a deal might be necessary to finally get reform over the hump, despite some of the ugly attacks emanating from the GOP camp. However, while successful reform would be a giant, freakin' feather in Obama's cap, citizens should be asking, "At what cost?" No, I'm not referring to the dollar amount necessary to provide health insurance for society's most vulnerable(the elderly, the poor, children). Rather, I refer to the precedent-setting deal between the White House and Big Pharma. If the only way to pass this type of legislation is by bribing opponents with extra-sweetheart deals, can we still cling to the myth of the democratic process as the true king in this country?

Rule of Law in China

2009-08-10T08:09:00.001-07:00

The New York Times ran an interesting article yesterday about the detention of a Chinese lawyer, Xu Zhiyong. Mr. Xu is a lawyer/scholar who ran a legal clinic that handled a wide array of cases on behalf of vulnerable citizens. He handled cases for migrant workers, death row inmates and families whose children were sickened by poisoned milk. Mr. Xu's advocacy of the rule of law in China has not gone over well with the ruling Communist Party. As indicated by the article, the charges that are the basis for Mr. Xu's detention, tax evasion, are seen as a cover for the true motivation of his captivity, angering the ruling party. Read the article here.

Sotomayor Confirmed.

2009-08-06T12:41:00.001-07:00

After nearly 18 hours of deliberation, the Senate has confirmed Sotomayor with a 68 to 31 vote. She is the first Justice of Hispanic descent appointed to the Court.

Coming to a Michigan Town Near You, Terrorists!

2009-08-03T08:03:00.000-07:00

The New York Times has an article today discussing the possibility that Michigan could become the adoptive home of some of the Guantanamo detainees when that facility closes. Members of the administration are still trying to figure out what to do with Gitmo detainees once the President makes good on his promise to close the facility. Cash-strapped Michigan could be a suitable destination because the state's max-security facility at Standish is set to be closed, just another victim of the state's budget disaster.

Now, the article in the Times focuses on the novel idea of incorporating detention and court services all in one convenient location. Think of it as a Wal-Mart for terror suspects. Although this is an intriguing idea that deserves attention unto itself (starting with questions about jurisdiction), I was more interested in a couple other quotes from the article.

Without the slightest hint of irony, or any recognition of the incongruity of the two statements, the author of the article writes:

"As many as an estimated 170 of the detainees now at Guantanamo are unlikely to be prosecuted. Some are being held indefinitely because government officials do not want to take the chance of seeing them acquitted in a trial." (emphasis added)

Later in the article comes this nugget:

"Administration officials say they are determined to keep to [President Obama's] promise of closing Guantanamo in January as a worldwide example of America's commitment to humane and just treatment of the detainees."

Just for a moment, put to the side all of the information that has been made public about detainee abuse and 'harsh interrogation techniques' (aka, torture). Even without all of that bad behavior, isn't the above quoted language enough to make patriotic Americans stand up and say, "Now, wait just a minute! We're going restore America's reputation as a humane and just nation by incarcerating people without charges and without the opportunity to confront the accuser in a court of law?"

Can anyone make sense of that reasoning? For years, the government has been beating the "these guys are the worst of the worst" drum. Now, despite the continued insistence that these are the devil's own, the government is having second thoughts about the certainty of convictions? (read here about the remarkable efficacy of federal courts handling terror cases) After a decade of lies from our government ('Saddam is in cahoots with Qaeda,' 'Saddam has WMD,' 'This administration is committed to transparency') we're just supposed to take them at their word and turn a blind eye as they defile the Constitution?

Jawad Update

2009-07-31T09:09:00.000-07:00

Mohammed Jawad, the Guantanamo detainee who has been the focus of a couple Murphy posts this week, is one step closer to freedom. The federal judge in his habeas case ordered his release yesterday. However, there could still be roadblocks to his journey home as the government weighs its options. Questions remain regarding whether the administration will accept the judge's ruling on the habeas petition and cut their losses, or make an effort to prosecute Jawad in the civilian criminal court system.

The government's case against Jawad, both in the military commission system and in the habeas case, suffered a fatal blow when Jawad's defense team successfully demonstrated that the confessions that served as the basis of the government's case were products of illegal torture (they came only after he was threatened with death).

Read about the case here and check back with us for future updates.

Gitmo Chicanery & Political Puppetmasters

2009-07-29T07:42:00.000-07:00

Following up on the last post regarding Obama's detainee policy, the New York Times has an article today about a Gitmo prisoner who could be a test case for determining who has final authority over the release of prisoners, the courts or the president. It's an interesting article and an issue to keep an eye on.

Also, while it may be old hat for some, I came across a very interesting website today, OpenSecrets.org. Although I didn't spend a ton of time perusing the content, I did discover an especially useful feature. The site provides detailed lists of campaign donors for Washington politicians. For those of you interested in learning who really controls your elected representatives, pop on over and check it out.

Trial Nazi says, 'No Trial For You!'

2009-07-23T08:00:00.000-07:00

The contours of President Obama's program to dispose of Guantanamo detainees and future terrorism suspects continue to take shape. This past Monday the Detention Policy Task Force announced that it would need an additional six months to complete the individual evaluations that would determine the forum in which each detainee would be prosecuted...or not prosecuted. Officials are also backing away from President Obama's deadline for closing the facility, the unspoken sentiment being, 'Gee, this is tougher than we thought...'

Accompanying the announcement of the extension, the Task Force released a preliminary report summarizing its work to create the legal framework in which each detainee would be brought to justice...or not brought to justice. The report provides additional confirmation that some Guantanamo residents will never see their day in court, or appear before a military commission, instead being kept in a legal limbo of indefinite detention without charges.

It should go without saying that this is a lead balloon of an idea that completely betrays the founding principles of our country. However, seeing as though we live in crazy times, here is a post by someone much smarter and far more articulate than myself, explaining why the arguments for military commissions and indefinite detention totally suck.

A breath of fresh air.

2009-07-22T09:08:00.000-07:00

Yesterday, the Michigan Supreme Court upheld the Michigan Court of Appeals decision in McNeil v Charlevoix County. According to the Michigan Supreme Court, local health departments may promulgate regulations that restrict smoking so long as they "[are] at least as stringent as the standard established by state law applicable to the same or similar subject matter." McNeil v Charlevoix County, No. 134437, slip op. at 6 (Mich., July 21, 2009) (citing MCL 333.2441(1)).

What's more, a Michigan health department regulation may provide employees with a private right of action to seek the regulation's enforcement and prohibit employers from retaliating. Regulations like the one at issue in McNeil fall within a public policy exception to Michigan's at-will work doctrine. See McNeil at 7 (stating that "[i]t is well settled [in Michigan] that an employer is not free to discharge an employee at will when the reason for the discharge contravenes public policy").

Living in glass houses?

2009-07-13T07:39:00.000-07:00

This week's hearings on Sotomayor's nomination are a landmark of sorts. For the first time since 1962, Senator Edward Kennedy will not be sitting on the Judiciary Committee. And Biden will be sitting the hearing out as well.
Still, commentators believe that Sotomayor will almost certainly be appointed to the Court, albeit only after the Republicans first make their case for labeling Sotomayor a radical judicial activist.

But, as Washington Post columnist, E.J. Dionne Jr., points out, the Republican's case is much harder to make after the U.S. Supreme Court's recent decision to:

postpone hearing Citizens United v. Federal Election Commission,

request new briefs, and

expand the question presented to encompass whether corporations should be allowed to finance elections campaigns and counter-campaigns.

What ever happened to deciding cases on narrow grounds, if possible?

...And who do you think the real judicial activists are now?

To learn more about Citizens United v. Federal Election Commission, visit Scotus Wicki.

Accessing law online is easy, but can you rely on what you find?

2009-06-30T09:50:00.000-07:00

As more laws become available online, it becomes easier for average citizens and lawyers without easy access to Lexis or Westlaw to research legal issues--Maybe. Although many sources of law seem reliable, such as laws and and cases made available on state legislature or supreme court websites, much of what is published online is unofficial and not authenticated. See Ruth Stevens and Jane Edwards, State Primary Law Materials in a Digital Era, MICH. BAR JOURNAL, July, 2009, at 20.

In Michigan, only the Michigan Register, the Michigan Administrative Code, and the Michigan Administrative Code Supplement, which are published on the State Office of Administrative Hearings and Rules ("SOAHR") website, are official, meaning "governmentally mandated" or "approved by statute or rule." See Id. at 22 (quoting the State-by-State Report on Authentication of Online Legal Resources.) Cases published by the Michigan Supreme Court and the Michigan Court of Appeals are not official, and neither are the statutes published on the website of the Michigan Legislature. And none of these resources, including those published by SOAHR, are authenticated, which means that they all may contain transcription errors or otherwise vary from the official print source (except for the Michigan Administrative Code, but only because SOAHR is not required to publish a print version).

One plus? Authenticated laws online are normally marked as authentic in some way. Also, the Federal Government has acknowledged the importance of this issue, and taken positive steps towards authenticating the information it publishes. For example, the U.S. Government Printing Office is now working on an authentication initiative called the Federal Digital System ("FDSys"). Moreover, there is even talk of drafting model legislation to address the authentication issue.

But in the meantime, be careful what you rely on.

Keep Your Pants On (even at school)

2009-06-25T11:21:00.000-07:00

In a decision that should please civil libertarians and awkward adolescents alike, the U.S. Supreme Court determined that, in light of the circumstances, a strip search of a junior high student by school officials was unreasonable. Justice Souter wrote for the 8-1 majority in Safford Unified School District #1, Et Al., Petitioners v. April Redding. Referring to the strip search, Souter notes that "Its indignity does not outlaw the search, but it does implicate the rule that the search [be]‘reasonably related in scope to the circumstances which justified the interference in the first place.'" According to the Court, the circumstances failed to justify such extensive intrusion.

On the issue of liability for the school officials who ordered and performed the search, the Court determined that due to the unsettled nature of the law at the time of the search, the officials are entitled to qualified immunity.

Blind justice?

2009-06-19T09:50:00.000-07:00

Justice still may be blind, but after last Wednesday it will get a better look at witnesses who appear in court in Michigan. Despite the ACLU's opposition, the Michigan Supreme Court has approved revised Michigan Rule of Evidence 611; judges may exert control over what witnesses wear when testifying in court. Specifically, judges may require Muslim women to remove their veils, or niqabs, thus violating a tenet of their faith, or loose their day in court.

Read more on court room attire. And more about Rule 611 and the confrontation clause.

CREW Sues for Access to White House Visitor Logs.

2009-06-19T06:26:00.000-07:00

Citizens for Responsibility and Ethics in Washington ("CREW") just filed a lawsuit against the secret Service (Department of Homeland Security) seeking access to the White House visitor logs. CREW's position is that the documents are agency records, not presidential records; this position was the winning argument last year in litigation before U.S. District Court Judge Royce Lamberth.

No Public Access to White House Visitor Logs

2009-06-16T11:53:00.000-07:00

Hate to sound like a broken record here at Murphy's Law Library Blog, but it seems that every day brings another disappointment in the realm of government transparency. Today's downer comes in the form of yet another extension of Bush-era policies, this time dealing with public access to information about visitors to the White House. The White House claims that the visitors log maintained by the Secret Service qualifies as presidential records. Presidential records are exempt from FOIA. The exemption from FOIA means that the American people have no way of finding out who is in Obama's ear. That's troubling. MSNBC has a nice article on this issue here.

Transparent Government...Not So Much

2009-06-11T12:20:00.000-07:00

Faithful readers of the library's print publication, Murphy's Law, will recall an article in the May issue discussing the Freedom of Information Act. President Obama wowed starry-eyed progressives with his broad pronouncements of the value of FOIA. Owing to its firm dedication to objectivity, Murphy's Law decided to reserve judgment regarding the impact of the President's statements and also the impact of the policy shift for FOIA.

Events and occurrences in the intervening months since that article have cast a decidedly dour pall over Obama's 'sunshine is the best disinfectant' rhetoric. The most recent disappointment stems from the White House support for the Detainee Photographic Records Protection Act of 2009, co-sponsored by Joe Lieberman and Lindsey Graham. The Act was attached as an amendment to a spending bill. The Act has been removed from the House version of the spending bill at the insistence of House Democrats. The Senate version is in committee. Congressional opposition to the Act prompted Lieberman and Graham to issue a joint statement in which they vow to do everything in their power to bring the wheels of the legislative process to a grinding halt if the Act is not passed.

With every passing day this administration appears more and more to be an extension of its predecessor. Change we can believe in? I'll be reserving my belief for that moment when changes actually occur.

Testing research skills on the bar.

2009-06-11T06:20:00.000-07:00

Blair Kauffman, a librarian at Yale Law Library, recently wrote an interesting blog on the importance of teaching new attorneys good research skills, and offered a proposal on how to accomplish this goal. Kauffman's proposal? Test for legal research skills on the bar. Kauffman's idea has garnered some support from others in the legal education community, such as Claire Germain, a law librarian and faculty member at Cornell, although there are naysayers.

Kauffman's proposal does make sense. One reason for requiring all lawyers to pass the bar, after all, is to ensure that new lawyers possess all of of the requisite legal skills, before they test their abilities on a hapless client. But too many don't.

...And this should be cause for concern.

Zotero survives lawsuit

2009-06-09T09:28:00.000-07:00

In Murphy's Law, October 2008, the library let you know about a great research tool called Zotero, but with the caveat that it might have a limited lifespan--Thompson Reuters Inc. had sued Zotero's George Mason University makers for allegedly reverse engineering its EndNote software, thereby violating terms of the party's licensing agreement.

Well, the lawsuit's over. Last Friday, a Virginia Circuit Court judge dismissed the action--so feel free to go crazy with Zotero!

More information on Zotero and the lawsuit, including links to court documents, is available here.

A new law for fighting crime in Mexico

2009-06-09T06:36:00.000-07:00

Mexico has adopted a new statute that will result in the restructuring of the Office of the Attorney General and its regional units. The new "Organic Law of the Office of the Attorney General of the Republic" also, inter alia, grants to the Federal Public Prosecutor's Office new powers for conducting criminal investigations.

Don't ask, don't tell for a little while longer

2009-06-09T06:23:00.001-07:00

Yesterday, the Supreme Court refused to hear a challenge to the U.S. military's "don't ask, don't tell" policy regarding gays serving their country in the military. Click here to read more on the subject.

Guns and Judges

2009-06-05T07:14:00.000-07:00

In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme Court held that a District of Columbia ban on handguns was unconstitutional. In National Rifle Association, v. City of Chicago, the Supreme Court is taking another look at the Second Amendment. This time the NRA petitioner is arguing that the Second Amendment has been incorporated into the Due Process or Privileges and Immunities Clauses of the Fourteenth Amendment; therefore, state bans on handguns are also unconstitutional. If the Court agrees, various state ordinances prohibiting or restricting possession of hand guns will be found unconstitutional, or on shaky constitutional ground.

On a related note, some have characterized Sotomayor as an anti-gun activist due to her recent decision in Maloney v. Cuomo, 554 F.3d 56 (2009) that a New York ban on nunchuka did not violate the Second Amendment.

...Having Easterbrook and Posner on her team should help a little.

Finally, for those of you interested in reading more about the Second Amendment, here are a few titles available in the Law Library:

The mythic meanings of the Second Amendment : taming political violence in a constitutional republic by David C. Williams [KF4558 2nd .W55 2003]

Gun violence in America : the struggle for control by Alexander DeConde [ HV7436 .D43 2001]

The right to bear arms : rights and liberties under the law by Robert J. Spitzer [KF3941 .S68 2001

And some history on this and other NRA petitions, and links to court documents filed around the same time is available on SCOTUS.

Update for anyone following Al-Haramain Islamic Foundation v. Obama (aka Al-Haramain Islamic Foundation v. Bush)

2009-06-02T06:36:00.000-07:00

On May 22, 2009, Judge Walker issued an order to show cause why the government should not be sanctioned for failing to provide to plaintiffs' attorneys (those who qualify for TS/SCI clearances) information pertinent to the action, or agreeing to terms in a proposed protective order (and failing to offer a protective order of its own for consideration). The sanctions would prohibit the government from contesting its alleged liability.

On May 29,2009, the government filed its response arguing that it has not engaged in sanctionable conduct.

More resources for researching Sotomayor

2009-05-29T06:07:00.000-07:00

The Library of Congress has just created a website dedicated to information about the Sonia Sotomayor. SCOTUSBLOG also contains interesting posts discussing Sotomayor's record.

To learn more about Ricci v. DeStefano and more...

2009-05-28T09:42:00.000-07:00

The New York Times has compiled a fairly comprehensive collection of Sotomayor's cases and writings. Judgepedia has compiled summaries on the opinions written by Sotomayor that were overruled. Click here to read: "Discrimination Case Could Pose Problems for Sotomayor."

Also, the following articles or speech transcripts are available to students and faculty on HeinOnline, Lexis, or Westlaw:

Hon. Sonia Sotomayor, Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation: Judge Mario G. Olmos Memorial Lecture: Latina Judge’s Voice, 13 La Raza L.J. 87 (2002).

Hon. Sonia Sotomayor and Nicole A. Gordon, Returning Majesty To The Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35 (1996).

Hon. Sonia Sotomayor, Tribute to John Sexton [comments] 60 N.Y.U. Ann. Surv. Am. L. 23 (2004-2005).

Complimentary blind spots

2009-05-28T06:17:00.000-07:00

A few years back, I was listening to a colleague describe a recent trip he had taken to an island somewhere in the Caribbean. The food was delicious, the resort elegant, and the diving was suburb. But my friend expressed reservations about the natives. He said that the island people were poor, which was true, and that they were also filthy. Surprised that my open minded and normally generous colleague would make this statement, I asked on what he based this assessment. He replied that all over the island natives had left trash piled in front of and around their homes. I asked whether the island government provided its poorer residents with a trash service. He said no. I asked if the natives had cars or trucks to haul trash to a dump. Most did not. My friend got my point.

A person’s background informs his or her worldview. Although people generally can overcome prejudice when unexamined beliefs are reflected back to them through another’s eyes, all people still have blind spots. As my friend did, people make assumptions, sometimes without knowing that they’ve missed entirely facts that would have led them to form another conclusion.

The impact of a person’s upbringing and personal experience on his or her beliefs is not seriously disputed. Therefore, opponents of planned Supreme Court diversity argue instead that judges, by embracing a strict constructionist philosophy, can arrive at gender or race or anything-you-like blind decisions. See e.g., Ruth Marcus, May 13, 2009. To those opposed to selecting by design a woman justice to replace Souter, picking a woman or a Hispanic isn’t necessary. If a woman happens to be the best candidate fine, but through clear legal thinking, a group of white men can represent sufficiently the viewpoint of the 51% of our population that is female and various minorities to boot (not represent in the legislative sense, but rather approach legal analysis and debate from multiple perspectives so that all meanings that can reasonably be construed from a legal text are explored).

In his May 27, 2009 op-ed, George Will argues that justices should adopt the “jurisprudential doctrine…expressed by a certain Illinois state legislator [Obama] in a 2001 radio interview: ‘The Constitution is a charter of negative liberties. . . . It says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf’”, instead of engaging in judicial activism—something Will apparently believes Sonia Sotomayor will do if her appointment is confirmed. Moreover, Will alleges that Sotomayor will adopt what he terms “the Thurgood Marshall doctrine: ‘You do what you think is right and let the law catch up.’” He implies that Sotomayor, because of her background, gender, race, or liberal bent, will act partially and improperly when adjudicating a case.

But Will and others are confusing issues. Strict construction and judicial activism are not functions of a justice’s race, gender, or political affiliations. Anyone can engage in either activity, properly or not. Strict construction, to the extent it has any merit, is essentially a doctrine favoring constitutional interpretations that do not expand the scope of governmental powers in relation to retained state and individual rights. This is not a radical idea. But it does not follow necessarily that justices should never act to protect individual rights from prejudicial government action—even if it means holding a statute unconstitutional. After all, judicial review has been widely accepted ever since Marbury v. Madison.

On the flip side, Will is right. Justices should not for personal reasons hold a statute unconstitutional without legal cause. This would be judicial activism at its worst. But his jab about the “Thurgood Marshall Doctrine” ignores the reality that before and during Justice Marshall’s life African American defendants experienced “robbery trials that lasted less than fifteen minutes [and t]he best a defense lawyer could often do was to make sure that the defendant had a pregnant wife.” Deborah L. Rhode, Letting the Law Catch Up 44 Stan. L. Rev. 1259, 1260-1261 (1992). African Americans used separate bathrooms and rode in the back of the bus. Somewhere along the way, our court and legislature failed to recognize timely injustice.

“Nearly everyone thinks that judges should sometimes invalidate unconstitutional laws.” Randy Barnett, Constitutional Cliches, 36 Cap. U.L. Rev. 493,495 (2008)(emphasis in original). Some statutes should be held unconstitutional. Most people do not feel Brown v. Board of Education was decided wrongly, for example. It’s just in grayer areas that people point fingers and call justices activists because an opinion they decided is not to the people’s liking. But this does not alter what the correct inquiry should be—did the Court get it right?

Perhaps some judges are like a colleague of Justice Frankfurter—“the kind of man whom experience passed through without stopping,” Id. at 1261, but most people are to some extent the sum of their experiences. As Ginsburg said in a recent interview, a woman would not ask, as a male justice had, whether forcing a twelve year old girl to undergo a strip search at school resulted in any harm. See Marcus. Maybe Korematsu v. U.S., 323 U.S. 214 (1944) would have been decided differently if the bench had included an Asian American or other persons with firsthand experience with racism and oppression. And the Court may have found discrimination in Feeney v. Personnel Administrator of Massachusetts, 442 U.S. 256 (1979), which held that a veteran’s employment preference plan did not discriminate unfairly against women because no harm was intended. Women and minorities know firsthand that discriminatory acts have often been characterized as being for the good of the subjugated class.

It is important to ask whether a potential justice, like Sotomayor, will decide cases properly; neither expanding improperly government’s powers nor allowing statutory requirements to supplant Constitutional liberties. And if her jurisprudence proves unsound, as some have alleged in relation to the Ricci case in particular, maybe she is not right for the job (although her record generally appears sound). But Sotomayor’s assertion (taken out of context) that as a Latina woman she might decide certain cases more wisely than a person without the benefit of her life experiences should not be a deal breaker.

Justice Scalia has explained statutory and constitutional construction well: “[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Antonin Scalia as quoted in Barnett, supra, at 499-500(citation omitted). But the Court is much more likely to comprehend fully and fairly texts, and decide cases correctly, if it is composed of a diverse group of justices with complimentary blind spots.

How to protect, or not, national security.

2009-05-26T12:36:00.000-07:00

Presidents have long sought to block executive branch employee access to Congress’s ear. See The Whistleblower Protection Enhancement Act of 2009: Appearing Before the House Committee on Oversight and Government Reform, 111th Cong. (2009)(Statement by Louis Fischer, Specialist in Constitutional Law, Law Library of the Library of Congress). In their day, both Roosevelt and Taft threatened to fire any agency employee who disclosed information to Congress directly, and not through his or her agency head. See Id. More recently, Ronald Reagan made agency employee security clearances contingent on employees signing nondisclosure agreements. See Id. And because confidential information is, according to the executive primacy argument, in the sole purview of the executive branch, whistleblower protections do and should not cover employees seeking to blow the whistle on executive branch activities tied to national security.

Ensuing legal battles over national security whistleblowing have turned on whether the president has plenary power over international affairs, and thus national security information, or shares responsibility for national security matters with Congress. See Id. Under Bush, for example, the Justice Department asserted that “pending national security whistleblower legislation ‘constitute[d] an unconstitutional interference with the President’s constitutional responsibilities respecting national security and foreign affairs.” Id at 18 (citation omitted). Others, like Fischer, infra, argue that Congress, like the president, is constitutionally required to oversee national security issues and act as a check on executive abuses of power. See generally, Id.

In the end, the relevant question is whether more honesty and competence in the executive branch or greater control over information flow from the executive branch will better protect our national interests.

We don't yet have an answer to these questions, but on February 9, 2009, the saga continued when Senator Daniel Akaka, a democrat from Hawaii, introduced S. 372 in order to expand federal whistleblower protections. A month later, on March 12, 2009, Representative Christopher Van Hollen, a democrat from Maryland, introduced a related bill, H.R. 1507, the Whistleblower Protection Enhancement Act of 2009. H.R. 1507, if passed, would amend current federal law, in part, by expanding what constitutes a protected disclosure.

Of interest here is that H.R. 1507 prohibits “implement[ing] or enforce[ing] any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosures to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse, or public health or safety threats); title VI of the National Security Act of 1947 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosures that could compromise national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling.’” H.R. 1507, 111th Cong. (2009).

Will this bill, and its expanded whistleblower protections, pass? Find out by tracking H.R. 1507 on OpenCongress--a great tool for staying up-to-date on any current bill.

State v. Weaver -or- Security v. Privacy

2009-05-18T08:31:00.000-07:00

A recent ruling by the Court of Appeals for the State of New York highlights the law's ongoing efforts to balance security and privacy interests in a world of ever-increasing technological innovation. In State v. Weaver, police, without a warrant, surrpetitiously attached a GPS tracking device to the undercarriage of Mr. Weaver's van. The device was used to track the movements of the van for a period of 65 days. The majority of a divided court determined that the use of a GPS device without a warrant constituted an illegal search and ordered that the evidence gathered using the device be excluded. The majority decision was based on New York's state constitution, as the U.S. Supreme Court has yet to rule on the use of GPS devices for tracking purposes. The opinion is here. An article discussing the decision is here.

3 Strikes and You're...Off the Internet?

2009-05-14T08:11:00.000-07:00

An interesting proposal aimed at curbing Internet piracy is making its way through the French legislature. The plan includes a "three strikes" provision that would permit the French government to revoke an individual's Internet access after three accusations of copyright infringement. Ed Felten of Princeton University responded with a tongue-in-cheek proposal of his own.

EDIT: Here's another article about the French three-strikes law from NPR's website.

Condolences

2009-05-13T09:57:00.000-07:00

The UDM Law community is saddened by the the passing of longtime scholar, Father David C. Bayne S.J. He passed away on April 8, 2009. Father Bayne's legal scholarship spanned six decades and included a stint on the University of Detroit Law School faculty. He also served as the Dean of the U.D. Law School from 1958-1960. Father Bayne was recognized as a leading authority in the fields of corporate control and securities regulation. He will be greatly missed.

Selecting a new justice.

2009-05-13T06:39:00.000-07:00

For those of you following the selection process for Souter's replacement, here is an interesting opinion piece on why it is so important that Obama selects a woman. And another article discussing the importance of nominating a Hispanic to the High Court.

What is the Congressional Research Service (“CRS”) and why is it in the news?

2009-05-12T10:47:00.000-07:00

Since people in the news have been talking about CRS recently, I thought I’d pull together some info about the service.

What is CRS?

In 1914, Wisconsin Senator Robert LaFollette and Representative John M. Nelson pushed Congress to include in the “Legislative, Executive, and Judicial Appropriations Act” a provision that would establish, as a division of the Library of Congress, a legislative reference service. See Ida Brudnick, The Congressional Research Service and the American Legislative Process (CRS, Order Code RL33471, 2008). The Wisconsin Congressmen succeeded; President Wilson signed the bill into law; and the Legislative Reference Service (“LRS”) was in business. Several years later, Congress permanently authorized the service as part of the “Legislative Restructuring Act of 1946.” See Id citing ch. 753, title II, sec. 203, August 2, 1946, 60 Stat. 836. CRS did not acquire its current name, however, until 1970.

In 1970, in an effort to reorganize yet again, the 91st Congress passed H.R. 17654, and the Legislative Reorganization Act of 1970 became law. See H.R. Rep. No. 91-1215. “Provid[ing] Congress with new sources of information and research, including development of an automatic data processing system [and] expand[ing] the Legislative Reference Service into a Congressional Research Service” was a stated purpose of the legislation. Id. Today CRS is a respected nonpartisan policy research service to Congress. And CRS’s raison d’etre? According to the U.S. Court of Appeals, D.C. Circuit, “to serve Congress.” Keefe v. Library of Congress, 777 F.2d 1573, 1577 (1985).

For this reason, only Congress has access to CRS reports. And only Congress can decide to release a report. As a result, there is no consistent, reliable system for releasing CRS reports to the public. And many never see the light of day.

So what’s the fuss?

CRS reports are really good tools for researchers, policy wonks, and lawyers. The reports cover an unbelievably wide assortment of topics ranging from nuclear proliferation to poverty to, well, CRS itself. And taxpayers foot the bill.
It is this funding mechanism that has motivated various groups, such as the Center for Democracy and Technology through its OpenCRS project and OpenTheGovernment.org, and certain members of Congress, to fight for free access to CRS reports for the general public. They have been fighting this fight for years without success, and many reports have yet to see the light of day.

Why’s it in the news now?

Proponents of open government may soon succeed. Recently, Wikileaks posted on its site over 6,000 CRS reports. But the end of April, Joseph Lieberman (ID-CT) and Senator John McCain (R-AZ) introduced S. Res. 118, which, if adopted, would provide the public with access to CRS publications online.

From the Even-a-Blind-Sow-Finds-An-Acorn-Once-In-a-While Department:

2009-05-12T08:58:00.000-07:00

Murphy is pleased to provide an update on the most recent Murphy’s Law newsletter. Several media outlets, here, here, and here, ran articles last week discussing the government’s efforts to avoid disclosing the substance of the Anti-Counterfeiting Trade Agreement (ACTA), a pact it is currently negotiating with several foreign nations. This is relevant to the Murphy’s Law newsletter for two reasons. First, prospects for the open and transparent government allegedly favored by President Obama are looking increasingly grim, as government lawyers continue to stonewall FOIA requests. And second, based on available information about ACTA, some have speculated that an Internet section included in the pact could be used by the big content industries to further stifle competition and increase their control over content. A summary of the ACTA negotiations produced by the Office of the United States Trade Representative can be found here.

Welcome

2009-05-11T13:24:00.000-07:00

Welcome to the University of Detroit Mercy Law Library's new blog. On this blog, we will discuss interesting legal issues and current legal news. Check back soon!